Now We Get To It
As expected, private insurance companies nibbling away at public health care.
No surprise here. No one really expects tigers not to eat meat. The insurer’s behavior is totally expected, normal, and natural for what they are, which are large private companies attempting to maximize profits on a model of “insurance” that cannot and never has been able to work. Human health never is and never can be the type of calculable risk amenable to insuring. BIOLOGY DOES NOT WORK THAT WAY. Were we all replaced by androids, perhaps. But not until then.
(Caveat: were we all replaced by androids, HMOs would have worked too – the HMO model only works if 100% of the parties involved are both rational and completely healthy 100% of the time. Then, of course, we would not need health insurance at all.)
A quick overview of the Americare plan is available here. It is, basically, what a number of us have been challenging the private insurers to allow for some time: let the federal government into the health insurance business as a market participant. That’s all. If public insurance is really the services-strangling, cost-hoovering juggernaut its opponents suggest, they should be happy to watch it fail in the market, right?
…Ah, but now that the idea is actually on the table, we get to the REAL source of their caterwauling: private insurers are now insisting they will be put out of business by a public health insurance program.
To which I say, you know what? If you are in fact threatened by the existence of a program demonstrated to run at 25% less overhead than you do, that is not obsessed with profiting the elite few who own shares of it (BCBS, which is a nonprofit, excepted), you will either start providing a better product at a lower cost, or you will die. THAT is your beloved “free market,” which by careful gutting of regulations and enacting of special dispensations for the creations of your cartels you have striven so long to preserve. Don’t you DARE, now that the free market that has benefited you for so long threatens to ruin your existence, come wriggling and whinging to us, demanding that the market be made less free. Bed. Made. Lie.
(For the record: I do not actually like the Americare plan. Granted, I find it immensely preferable to doing nothing. But it’s still a piecemeal approach to a problem that needs a slash-and-burn: cut private insurers back to covering merely what the federal program will not, and create a state-governed federal single-payer program with a small premium charge for those who can afford to pay it, which are the vast majority of us – Medicare for all.)
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By which I don’t actually mean “converting to Buddhism” (though as I get older I seem to become “more zazen, less anything else”), but rather “dramatically overhauling my ownership of large piles of crap.” This is something I have wanted to do since I got out of undergrad, but since I’d consigned myself to three more years of living in studio apartments and building furniture out of my casebooks (not actually kidding), I never really got a chance.
Then I moved in here and had to get over the six- and nine-month “humps.” Until this February I hadn’t had the same address for more than six consecutive months since 1999. Which doesn’t sound all that long ago to me, except it was a decade. I was tempted to buy a Tumbleweed House and go park it on the beach. (I still am, only I want a slightly larger non-wheeled one – say 250 square feet).
So with the frighteningly addictive help of Zen Habits and Unclutterer, I recently started overhauling my life again. I did this in undergrad, with excellent results, but with different aspects: my diet, my exercise habits, my sleep habits, my wardrobe. (My wardrobe is an ongoing project. I am my own Barbie doll.) Those things are as good as they’re going to get. I want to overhaul my medical routine, but that is taking Time.
This time, it’s been a combination of (a) getting rid of my excess crap and (b) getting plans for using the crap I have been carrying around that is not designated “excess,” like my several hundred books. The excess crap was stuff I kept because I didn’t know where I would settle down and therefore didn’t know what I would need there. (Some of it, like my casserole dishes, was because I inherited things from family, like the original-issue Pfaltzgraff service for anywhere-from-1-to-14-depending-on-what-you’re-serving-it-on I got from my mother. My only use for a casserole dish is soaking my feet. And holding my meds.)
(By the way, if anybody would like to trade an original-issue “Village” three-quart mixing bowl or a couple of the pedestal mugs for a casserole dish or two, please let me know.)
The books were because I am a total sucker for buying books and therefore tend to buy them much faster than I can read them. Also I buy books because “I think I should have this,” not because I ever intended to read it. That’s how I got Mills’ On Liberty, for instance, which I am finally currently reading. But I digress.
At any rate, having made the first big cut in the junk and a much bigger cut in my wardrobe than I had originally realized I needed to make (and yet, I miss nothing…clearly I am over-accumulating clothes), I am now attempting to make a dent in the books. This, of course, requires me to read the many I have accumulated but not read, to determine whether I should in fact keep them. Which I don’t mind in the least (or I would not accumulate books in the first place), but which is a slow process during which I must either live with the books or burn them down.
The good news is that I thought working ten-hour days would exhaust my reading-and-writing brain, but it’s actually (along with some proper exercise and HT-5 production…o hai lumen, glad you could join us) making me sharper. I can retain and articulate much more quickly than when I’m not under the gun. Not that I’m suggesting I want MORE work, certainly, but I seem to do best when the thumbscrews are just a leeetle tight. Must remember this when work slacks off again. (Which it won’t until after Sept.)
Right now, I am trying to decide if I want to dispose of the Herman Miller table and/or one or two of the three chairs in my living room. The more I have moved crap out of my living room, the more I have realized that I have a prime setup for a small dance studio, which I have always wanted. I only use one of the chairs, and the other one came from my parents and could easily go back to its spot in the spare upstairs bedroom whence it came. The third chair is my task chair from undergrad, which could also go to the parents or to one of my various college-aged cousins, except the cat loves it. A lot. So if I get rid of either, it’ll probably be the leather one first. (Though I could try moving Her Highness’s rainbow blanket to the leather chair and moving said chair to the sunny spot and see if its appeal increases.)
The table is not mine anyway; it belongs to my landlady and can easily be taken back downstairs. It’s a handy spot to put my laptop when I’m not using it, but that is literally all that table does. That and sit around rocking its bad-ass utilitarianism.
My inclination at this moment is not to move anything until I see if I can get the bookshelves down to one unit. I have sufficient space for my purposes right now (as long as I don’t go crazy with the pirouettes or jumps), and enough books to get through that it might be nice to have armchair options (that the cat has not bogarted).
The nice part is that, so far at least, I’ve had to trash very little. Even that year-old stack of ABA Journals I kept insisting I’d read got recycled. (I kept exactly two articles, a total of about nine pages.) I made one run to Goodwill on Saturday and will make another this week, and the furniture will either go back to my parents, to a cousin, and/or get donated. And OMG is it easier to sweep up the cat hair now!
Speaking of which: I rolled up the rug for storage, but Gracie has decided that makes it her own personal tree. I don’t want a rolled-up rug in my living room indefinitely, but it completely deters her from sharpening her claws on the cork wall. Maybe I’ll squeeze it in a corner beside a bookshelf.
Speaking of Her Catliness, here’s what she thinks of all this:
Thppt!
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Originally published in two parts at Dreamwidth.
Instead, I’ll be catching up on Troy Anthony Davis’s freestanding innocence claim, which has just been filed as a plea for original writ in SCOTUS. IIRC, SCOTUS has not granted an original writ of habeas corpus since 1925.
(EDIT: in re Grossman, 267 U.S. 87 (1925). My memory is not as crap as I’d thought. Also, a good history of the original writ is available in the Felker v. Turpin opinion, if anyone is into legal history.)
Davis’s case is complicated by the fact that his is a freestanding innocence claim, or a claim that “look, I didn’t do this and here is evidence,” rather than a claim of “the court did not play the game according to the rules.” The problem with freestanding innocence claims on habeas is that they may not exist. Section 2254 of AEDPA limits federal habeas review of state convictions to claims that are “contrary to, or involve[] an unreasonable application of, Federal law, as determined by the Supreme Court of the United States”, or which “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
As I understand it, Mr. Davis’s freestanding innocence claim is based, at least in part, on the fact that seven eyewitnesses who testified at his trial have since recanted. While common sense has us all going “wtf? of course he’s innocent! Grant his fucking writ already!”, the law itself is not on Mr. Davis’s side.
First, there IS no “contrary or unreasonable application of” Federal law involved in a freestanding innocence claim. (Arguably. There have been arguments that convicting innocent people is itself a contrary or unreasonable application of law, its spirit if not its letter. SCOTUS has not been all that impressed with such arguments in past, mostly because if convicting innocent people is a “contrary or unreasonable application of” any law, it’s the State law under which he or she was convicted, which is not appropriate grounds for federal review.) Freestanding innocence is not “the court screwed me by not playing by the rules.” It’s “I didn’t do this.”
The closest SCOTUS has ever gotten to admitting the viability of a freestanding innocence claim was in Herrera, in which the Court said that it couldn’t say freestanding innocence didn’t exist, just that this case wasn’t it. Not the most comforting of opinions (”I’m not not licking toads!”), but it did leave the door open for cases like Mr. Davis’s – and, comparing Davis’s seven recanting eyewitnesses to the facts of Herrera, I’d say he’s got a chance of being the “freestanding innocence” claim, albeit not a very good one.
(On the other hand, comparing the same facts to the case of Kyleen Hargrave-Thomas, they’re probably about equal on the freestanding innocence-o-meter, but Ms. Hargrave-Thomas is still sitting in Scott while Judge Gadola sits on her 60(b) and Governor Granholm sits on her claim that she’s not going to do shit till Judge Gadola rules on the 60(b)…and that case had a genuine 2254(d)(1) claim in addition to freestanding innocence. But no, I’m not bitter.)
The other problem, of course, is that any freestanding innocence claim relies for its very existence on the discovery of new evidence not reasonably discoverable at the time of trial. Which Mr. Davis has. But which immediately slams the door on a 2254(d)(2) claim. 2254(d)(2) deals with an “unreasonable determination of the facts,” which would immediately seem to encompass a freestanding innocence claim, except it’s only the facts “in light of the evidence presented in the State court proceeding.” Meaning that, for the purposes of 2254(d)(2), those seven lying witnesses (assuming they did lie in the State court and are not lying on their recant, which the prosecution will argue, you watch) are still in play. Shoots freestanding innocence right dead, I tells ya.
Often, it’s possible to wedge a freestanding innocence claim through 2254(d)(1) by hooking to an ineffective assistance of counsel claim, by blaming counsel’s inept investigation for not discovering the innocence evidence prior to filing the 2254(d)(1) petition. Tricky, because counsel has to have fucko’ed that one after trial but before now, though it’s doable if you can hook the mistake to your appellate counsel’s performance, to-wit: “My appellate counsel fucked up by not doing enough investigation to find out that seven of these nine eyewitnesses were lying fucking liars.”
The problem, of course, is that “my counsel’s investigation was inadequate” is not an ineffective assistance of counsel claim so long as counsel did any investigation at all; it’s only ineffective assistance if counsel did no investigation whatsoever. Also, counsel is allowed to come to court drunk and to sleep through large portions of your trial. No, really.
(It’s really fun to get habeas petitions that are all “my trial counsel fucked up and my appellate counsel fucked up by not noticing that my trial counsel fucked up. Repeat for seventeen different instances of fuckup. Also, I’m going to argue that my postconviction counsel fucked up by not noticing each of the seventeen different instances of fuckup even though there is no ineffective assistance claim for postconviction counsel because there is no Constitutional right to postconviction counsel. Fuckup fuckup fuckup fuckup fuckup. Also I am, like, the innocentz, yo.” Ninety-nine and 44/100% of those petitions go to the circular file.)
So there you go. We’ve got a claim that cannot be brought under Federal statute and which “doesn’t not exist” under Federal common law, and a bench that is largely untested in the habeas arena except when it comes to “enemy combatants,” an area which said bench cannot seem for the life of it to get in accord with its own precedent. (I miss O’Connor and Rehnquist.) My hopes, they are not high.
The first thing that strikes me on getting a quick background in Mr. Davis’s case is his counsel’s repeated attempts to argue that the Eighth Amendment creates a substantive right not to be executed when you’re innocent.
I understand attempting to ground such a right in the Eighth Amendment, since it certainly doesn’t exist in either of the due process clauses – they only give you the right not to be deprived of life without due process of law, not “without due process of law producing the result that comports with reality.” To my knowledge, no one has ever argued that “due process” means “process producing the correct result,” and one wonders how one would enforce such a process if it were required.
But no court has ever found a substantive right of no-innocent-execution or anything like it, and asking any court to do it with nothing on which to stand is a tall order. Cooking up a new substantive right out of whole cloth – even if it is a substantive right with which the overwhelming majority of Americans would agree – is massive judicial activism. The Warren court would probably have had the guts to do it, but our current bench doesn’t, and neither does the Eleventh Circuit.
Which also gives us today’s “surprise right you don’t have”: you don’t have a constitutional right not to be executed if you are innocent of the crime for which you are being executed. Really. I will now hold while you contact your Senator.
*pause, sip coffee*
The primary problem in the lower courts immediately prior to the filing of the cert petition for an original writ (available here) is that Mr. Davis’s federal habeas claim under 2254 was procedurally defaulted. There are ten billion and twelve ways to commit procedural default, but the upshot of all of them is that you cannot get your petition heard, not because your petition itself is crap but because you did something wrong in submitting it to the court.
To vividly illustrate, the actual murderer himself could show up in court and testify, with photographs, diagrams, and video of the event, that he is actually the murderer and not you, but if you somehow nine months ago forgot to put a staple in the proper corner of a document, you’re going to execution and there’s nothing you can do about it. (And yes, some procedural defaults are nearly that banal.)
I will now hold again while you contact your Senator. The law you are pissed about is the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA, pronounced “ED-puh”).
*pause, sip coffee*
No, really, call your Congresscritter, especially if he happens to be Arlen Specter; Specter specifically submitted and got passed an amendment to AEDPA that was supposed to allow innocence claims to be heard regardless of procedural default. He will be right pissed to hear the courts have eaten his amendment.
One of the things you absolutely must do before filing a habeas petition in federal court (on a State conviction, not a federal one) is “exhaust your claims” in state court; that is, anything you want to argue in federal court must be presented first to every available level of your state courts. If you were convicted in a state with a dual-track postconviction system, you’ll have to present it to all of them twice: once on trial/appeal and once on postconviction. (We have this in Michigan; it’s called a 5600 petition, after the Michigan Court Rule that governs it.)
Once you file a federal habeas petition, AEDPA gives you one year (365 days) to make it through the federal courts. The months or years the feds sit on your petition once you’ve filed it do not count against you. Usually, if a district court finds you haven’t exhausted your state claims, they grant what’s called a “stay and abeyance”: basically, they agree to sit on your petition, thus stopping the one-year clock, for as long as it takes you to run back to state court and clean up there. A stay-and-abeyance isn’t guaranteed, but they’re usually not denied absent extraordinary circumstances, like it’s obvious you fucked up on purpose for some nefarious reason.
According to the cert petition, and I’m too lazy to go pull the state court opinions to verify, the U.S. District Court refused to grant a stay-and-abeyance on Mr. Davis’s first habeas petition, which frankly shocks me, especially on a freestanding innocence claim, which it appears he’d developed by that time (his Constitutional claims were a Giglio prosecutor-induced perjury claim and a Brady prosecutor-withholding-of-exculpatory-evidence claim – not strong stuff).
Oh, but then it goes to appeal, and then it gets fun.
The highly unimaginative Eleventh Circuit, in denying Mr. Davis’s petition for leave to file a second habeas petition (opinion available here) said, among other things, that Mr. Davis should have stated a substantive freestanding innocence claim (in shorthand, a Herrera claim) to supplement his procedural freestanding innocence claim (in shorthand, a Schlup claim).
Schlup is ass-long and complicatz0red, but it’s basically the “escape hatch” of procedural default. That is, if you have been procedurally defaulted, you can still get a court to hear your habeas petition if you can show enough evidence (not previously available at trial or appeal) of your actual innocence that it is “more likely than not that no reasonable juror would have convicted” in light of that new evidence.
The Eleventh Circuit’s “so sorrie, should has argued you some Herrera” stance makes no sense. A Schlup claim does not stand or fall on the content or merits of the habeas petition. Schlup is a gateway claim: all it gets you is the right to have your habeas petition heard, regardless of what’s in it or whether it can hold water for more than five seconds. I’m pretty certain, in fact, that the Eleventh Circuit got this wrong. Unfortunately, it (a) doesn’t create valid grounds for a subsequent petition even if they did, and (b) doesn’t appear to be the basis of their judgment anyway.
If SCOTUS denies this petition, it will not, officially, be on the basis of Section V, which argues for a substantive Eighth Amendment right not to be executed if innocent. It may however be unofficially based on Section V. The Section makes all the right arguments from all the right cases, but the politics of the current Court make it highly foreseeable that this Court will decide not to bother with freestanding innocence at the cost of a man’s life when other courts would not.
After all, the strongest statements from SCOTUS against executing the innocent come from O’Connor, who is gone; Blackmun, who is dead; and Souter, who is leaving at the end of this Term (if granted, Mr. Davis’s claim would not be heard until next Term, unless remanded to the U.S. District Court for an evidentiary hearing.) In their places we have Roberts, who has never once taken the side opposite the State in any context; Alito, who will almost certainly argue this is a problem for the legislature; and [MYSTERY NOMINEE], who would only plug up the Souter hole but not provide extra impetus for finding a substantive right. (Also, if [MYSTERY NOMINEE] is Judge Sotomayor or Judge Wood, I don’t think she’d find a substantive right, either.)
This, in short, is not a Court likely to stand up and say “the time has come to make an affirmative statement about freestanding innocence claims and the right not to be convicted for crimes you didn’t commit and it is this.” Granting this petition would be tantamount to doing that, if not actually doing it. We just don’t have that Court.
I’m not saying that Section V shouldn’t be in there; I think it’s an absolutely proper, necessary, and vital argument and that it’s well-made for what it is. I’m saying that, despite the properness, necessity, and vitality of said argument, SCOTUS’s current personality is not one amenable to granting on those grounds.
…On the other hand, SCOTUS does have the option to grant without deciding by simply saying “yes, fine, District Court, give this poor schlub an evidentiary hearing” and wash its hands of the rest.
The crucial bit of the cert petition is on pages 18-19:
Once a petitioner is found to be innocent under Schlup, relief based on the petitioner’s underlying constitutional claims invariably follows. Indeed, once a court finds that “it is more likely than not that no juror would convict petitioner in light of the new evidence,” it defies all logic and morality that he would be executed nonetheless.
We discussed this very thing in my habeas class because it remains to this day an unresolved paradox of habeas law: a successful Schlup argument results in a federal court ruling that no reasonable juror would convict the petitioner, yet the petitioner (a) is still forced to attempt to establish that (1) there is such a thing as a substantive freestanding innocence claim and (2) his case is it, and (b) still faces the very real possibility that his habeas petition could be denied, which means that even though no reasonable juror could convict him, he remains convicted.
If SCOTUS grants this petition, it will be because of these two sentences. No Court has ever addressed this paradox. SCOTUS may or may not address this paradox in granting the petition; it doesn’t have to, and the temptation not to do so will be great, particularly for this Court regardless who Obama puts on it. (Nobody Obama picks could change the tenor of this Court much, frankly.)
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Justice Souter Retires
CALLED IT, as soon as I realized he hadn’t picked clerks halfway through April. He was always last to pick, but April is too long to wait even for him.
(I have the jealous. He’s going home to a cabin in New Hampshire with no Intertubes or telephones and where people leave him the fuck alone with his prodigious brain. I want to be left the fuck alone with Souter’s prodigious brain.)
(He does own a television, a gift from some friends. He has never plugged it in.)
Scott Lemieux contemplates the political effects of Souter’s retirement at the Guardian’s Comment is Free.
Statements from the remaining eight justices. Scalia, as usual, comes through with a zing: “The only consolation is that I am sure he will be happy back in his cold and beloved New Hampshire.”
It was inevitable: white man Mark Halperin throws a shitfit over the possibility that Obama will consider candidates for Souter’s vacancy who are not straight white cisgendered males.
Dear Halperin:
(a) If you gave your son seven-ninths of his birthday cake, would you let him pitch a hissyfit over how you gave his sister and his friend from next door one-ninth each? No. You’d box his ears and tell him to suck it up and quit being a whiny pansy-ass cakeface. Therefore, Halperin: suck it up and quit being a whiny pansy-ass cakeface. Why, NEXT year you might have to admit that women and POCs are HUMAN!
(b) I currently put the chances of Obama nominating Cass Sunstein at better than fifty percent. And Cass Sunstein is what? Oh, yeah – A WHITE MALE. Dumbshit.
(I had Elena Kagan first in line, but I don’t see him moving her out of the SG’s office quite so soon.)
Speaking of Obama, is he backpedaling on “Don’t Ask, Don’t Tell”? Seems to me now would be the time to strike, when gays are already getting gayified rights of gayness in multiple gaytastic states, and the armed forces are in no position to put up an effective fight against the ongayslaught. But what would I know?
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Although I bitch about it, there are days I’m really glad I do civil defense, not criminal defense. There are days I’m utterly grateful for the luxury of being just another private citizen with just another personal opinion I feel totally justified in voicing to anyone who will listen.
Lately, most of those days have included Angie Zapata’s case, which broke my heart when it broke and which breaks my heart even now, despite the fact that the jury came out better than expected. Juries don’t restore people to life, after all.
And yes, right now I’m reveling in the luxury – and it IS a luxury – of thinking that Andrade is a dangerous depraved violent piece of shit and LWOP is waaaay too good for him. I mean, fuck, he’s still got rights, truncated as they are: to appellate review, to habeas (my opinion that AEDPA is just about as depraved as Andrade notwithstanding), to 60(b) the shit out of his conviction. Meanwhile, Angie’s got…well?
But I feel I have to say something about the defense.
The first thing you must understand about a lawyer’s job is that we are not required to believe anything that comes out of our mouths. We are required to have a good-faith belief in the merits of our position, but that only means we have to believe the law really could work like we’re saying it should and that we’re not wasting the court’s time. That has nothing to do with personally believing what we’re saying.
(For instance: one of my most commonly-uttered sentences is “the plaintiff had a plain duty to read the insurance contract he signed.” Do I believe this is an accurate statement of Indiana law? Yes. Do I believe it will resolve an issue before the Court when I say it? Yes. Do I believe it? BullSHIT.)
A criminal defense attorney’s job is particularly difficult because, well, we’re required to defend criminals. Which, to the general public, means (a) we believe this depraved asshole is innocent, and/or (b) we believe what we say while trying to defend said asshole.
Neither one is necessarily true in any given case. In fact, I’m fair certain that Andrade’s attorney did not think Andrade was innocent – the “trans panic defense” (which private-citizen me is EVER SO GLAD failed, because what BULLSHIT law would THAT SHIT make?) pretty much excludes an innocence claim. But it’s precisely because that defense is so inflammatory that the second part is so important.
Criminal defense attorneys do not necessarily subscribe to the defenses they present. Got that? Criminal defense attorneys do not necessarily subscribe to the defenses they present. Our first duty is to our client, and we present the defenses that give our client a chance in cold hell. (And, before you blame criminal defense attorneys for that, imagine what it would have been like to have been accused of Angie Zapata’s murder while knowing you were innocent. Then tell me you don’t want a criminal defense attorney whose first duty is to you.)
I say this because I have had to think long and hard about whether I would have presented the “trans panic defense” in this case. My personal theory of criminal defense is that it is my job to make sure the game is played according to the rules, and that my responsibility can end once I’ve ensured the prosecutor has been forced to prove every element of his case beyond a reasonable doubt and within the confines of Constitutional fair play. But in this case, Strickland might have mandated me to present a defense I think is not only bullshit, but violent depraved misogynistic bullshit. Could I have done it? Would I?
I don’t know.
I’d like to think I’d go to the mat for a client’s rights no matter what he’d done. But this one…I don’t know. For one, I don’t know at all that the “trans panic defense” goes to the client’s Constitutional rights. If it’s in any, it’s in the “fair trial,” which is nebulous and which may not be a substantive right. Not that theorizing would make my decision any easier. (We will assume I’d have been court-appointed and could not have withdrawn. “I think my client is a violent depraved asshole and his only possible defense is violent misogynistic bullshit” is, usually, not enough to get a court-appointed attorney out of a case. Ironically, “my client’s sister’s roommate’s stepmother’s cousin is my hairdresser” might be.)
To be completely honest, and it sickens me, I think I would have put on the “trans panic” bullshit. I really do. Not because I felt any particular loyalty toward my client. In fact, I’d probably do it because I wanted him off the streets. My reasoning is that, without that “defense,” I leave a giant gaping hole in my case for Andrade to point to at every post-conviction phase and yell “ineffective assistance of counsel!” Strickland is a tough claim to make, but if he makes it? He’s out. And I find that much more scary and dangerous than my having to tell a violent dangerous misogynistic bullshit story to twelve random yokels whom I can only pray will see it for the violent dangerous misogynistic bullshit it is.
Yes, I would have to live with myself; and yes, I’d have to live with all of you exercising your First Amendment luxury to call me a violent dangerous misogynistic asshole attorney for the rest of my life. To close off a gaping appellate hole having nothing to do with the merits of the case or conviction? I’d take that hit.
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I’m reading the transcript in Sanford United School District v. Redding, oral argument of which took place today. I am also taking notes. They are, as usual, snarky and amusing. Says me.
Redding, in case you don’t recall, is the case in which the eighth-grader was strip-searched in search of ibuprofen she didn’t actually have.
Any oral argument is bound to be good when it starts with the following two paragraphs:
MR. WRIGHT: Mr. Chief Justice, may it please the Court: The search of Savana Redding in this case was constitutional because Mr. Wilson had reason to suspect that she possessed contraband which posed a health and safety risk. Therefore, searching any place where she might be reasonably hiding that contraband was constitutionally permissible.
CHIEF JUSTICE ROBERTS: Any place, even though he had perhaps no reasonable suspicion to suspect that she was hiding the contraband in her underwear?
Justice Scalia immediately points out that “places kids might hide stuff’ includes body cavities and so does not, according to the district, prevent body cavity searches of children. School District says this is okay because kids don’t actually hide stuff in body cavities. Tell that to all the fifth-graders with gum stuck behind their back molars.
Justice Souter thinks it’s skeevy that suddenly aspirin is “contraband.” The School District explains that, in administrator’s reasonable judgment, students need to be protected from teh scaree aspirinz. Especially when one almost died from taking a medication. That was not a scaree aspirin. Or a scaree ibuprofen.
Justice Ginsburg keeps asking things that are “not in the record, your Honor.” Well, maybe you should have done more homework, Mr. AttorneyPants.
Justice Ginsburg asks if the school ever asked the snitch when and how she got the ibuprofen from Redding. Mr. AttorneyPants says no, but that doesn’t matter ’cause they totally caught Redding red-handed, no pun intended. Justice Ginsburg thinks Mr. AttorneyPants is full of shit. Justice Souter agrees, asking if anyone actually knew what the pills everyone was so scared of were. Mr. AttorneyPants says he totally wrote that in the brief and Justice Souter should totally go, like, read it again because he knows it’s in there, man.
The School asks for a bright-line rule that “Once you had reason to suspect a student is possessing any contraband that poses a health and safety risk, then searching any place where that contraband may reasonably be found is constitutional-” and is cut off by Justice Scalia, who thinks this is “astonishing” bullshit because black markers are “contraband” in this particular student gulag, for fuck’s sake. Have I ever mentioned that Scalia is a total champion of the Fourth Amendment and I love him for it?
Justice Ginsburg points out that this case is vastly different from New Jersey v. TLO, and brings up again that nobody checked out the snitch’s story before strip-searching Redding. Mr. AttorneyPants reassures her that the reliability of tips is totally fine because school administrators rely on them. Justice Ginsburg does not buy this shit either, and says that they could at least have asked a follow-up question or seven. Mr. AttorneyPants says it wasn’t necessary because some other kid was also totally reliable, and besides liars get punished. Except they don’t, as he explains when Justice Stevens asks how the lying liar snitch got punished for ratting on Redding.
Justice Scalia still wants to know under what circumstances a school administrator would be allowed to crawl up a kid’s ass. Mr. AttorneyPants says the Court should not allow that ever, and instead send the kid to the hospital because administrators are not “clinically trained” to sexually assault students perform cavity searches. But don’t forget they are trained pharmacologists.
Justice Scalia points out that that’s a nice practical line, but a legally useless one. Mr. AttorneyPants says it’s cool because the “community” would never allow body cavity searches. Justice Souter wants to know in which body cavity Mr. AttorneyPants just stuffed the Fourth Amendment.
Justice Ginsburg also points out that, after the school failed to find any contraband in Redding’s underpants, she was forced to sit outside the vice principal’s office for over two hours, during which nobody bothered to call her parents. Justice Ginsburg wants to know what was up with that. Mr. AttorneyPants says the investigation was still ongoing. Justice Ginsburg doesn’t see how a girl sitting alone on a chair is being “investigated.” Justice Scalia thinks she should have been sent to study hall.
Justice Breyer, mostly to let the reporter know he’s still alive, asks why Redding had to be stripped at all, when she could have just shaken out her clothing to show there was nothing in it. Justice Scalia and Mr. AttorneyPants jump Justice Breyer and beat the reasonableness nonsense out of him.
ARGUMENT BY THE US AS AMICUS CURIAE
Mr. SolicitorPants (well, Mr. AssistantSolicitorPants) begins by insisting that intrusive searches in schools require more, not less, Fourth Amendment scrutiny, much to my surprise, but is interrupted by Chief Justice Roberts, who wants to know why the Court can’t just call it qualified immunity and go home. Mr. SolicitorPants says everyone thinks the Court should totally decide the Fourth Amendment question, but admits it doesn’t have to, which is so not the right thing to say to Chief Justice Roberts.
Justice Scalia attempts to save Mr. SolicitorPants’ hash by explaining that one of the defendants doesn’t have qualified immunity. Mr. SolicitorPants helpfully points out that, no, the Court could totally remand for that defendant.
Justice Kennedy, who is NOT DEAD EITHER, says that Mr. SolicitorPants doesn’t really want to remand to the Ninth Circuit because Mr. SolicitorPants doesn’t like their “sliding scale” theory, isn’t that right? Mr. SolicitorPants wants “greater specificity in the information.” Nobody knows what anybody is actually talking about, and Justice Thomas is either asleep or dead.
Justice Scalia asks if this is a “reasonable suspicion” standard, and when assured it is, he asks if, well, you’ve tried everywhere but the underwear, do you then have a “reasonable suspicion” the pills are in the underwear? I have just realized how exceptionally creepy a bench of eight old men talking about a thirteen-year-old’s underwear is. The presence of Justice Ginsburg does nothing to de-creep it, either. Mr. SolicitorPants says, well, no, you don’t have a reasonable suspicion of pantydrugs at that point. Justice Scalia is confused at the sudden non-discovery of pantydrugs.
Mr. SolicitorPants then says that, if you have a reasonable suspicion the drugs are in the panties, you go right for the panties. Chief Justice Roberts says, in a manner befitting a Southern belle, “Oh, surely not!” Mr. SolicitorPants tries to explain this is just like TLO because there the reasonable suspicion was that the cigarettes were in the purse. Justice Alito asks if the school has to have a tip that the drugs are specifically in the underwear. Mr. SolicitorPants tries to backpedal and FINALLY uses the phrase “totality of the circumstances,” which in this case apparently include a critical mass of students storing pills in their panties.
Mr. SolicitorPants, while backpedaling, begins to juggle puppies as well by saying that the teachers knowing that “these pills were going to be consumed at lunch as part of an event that obviously wasn’t simply intended to get rid of the students’ headaches” was reasonable suspicion. So if the event was simply intended to get rid of the students’ headaches, would that not give rise to reasonable suspicion? Mr. SolicitorPants is giving me a headache.
Justice Alito asks if this would be “a different case” if the snitch had been an even snitchier snitch. Mr. SolicitorPants says yes, but only if the teacher asked the snitch to snitchily elaborate. Justice Scalia thinks Mr. SolicitorPants is an idiot, which is not helped in the least by this exchange:
JUSTICE SCALIA: So there is a sliding scale for the dangerousness of what you’re looking for?
MR. O’NEIL: No. It simply means that it’s relevant to whether in the totality of the circumstances that school official could have reasonably suspected that the student was hiding it.
Don’t worry; that didn’t make any more sense to the Justices than it did to you. Or me. Apparently, it has something to do with the fact that thirteen-year-olds never hide ibuprofen in their underwear, but they totally hide crack there, like, all the time. Mr. SolicitorPants desperately tries to extricate himself from the impossible bullshit situation he has just created, while multiple Justices continue to beat him with it. Then they let him sit down. Mr. SolicitorPants wets himself in relief.
ARGUMENT BY RESPONDENT (REDDING. WELL, REDDING’S ATTORNEY)
Mr. RespondentPants begins, “We agree with the Federal Government that before conducting an intrusive strip search a school needs to have location-specific information. And while this case can begin and end with that well-accepted proposition, it’s also important to recognize that a school needs greater — a greater degree of suspicion to conduct a strip search than to conduct an ordinary backpack search.”
Chief Justice Roberts immediately goes back to the qualified immunity problem. Apparently, it has been on the table the whole time and he doesn’t like the way it’s looking at his lunch. The words “rummaging around on a 13-year-old girl’s naked body” are finally used. Justice Thomas wakes up.
Justice Kennedy wants to search for meth. Mr. RespondentPants doesn’t see a problem with that, except for the meth part. Except the meth part is cool, because there was no reasonable suspicion in this case so the school wasn’t allowed to find meth in Redding’s underpants. Which is great, because there was no meth in Redding’s underpants.
Justice Scalia asks if Mr. RespondentPants wants a “sliding scale.” Mr. RespondentPants says no, he wants a “two-tier framework,” which has something to do with searching students’ lockers but not their bras. The words “pelvic area” are used as a euphemism for ladybits.
Justice Breyer gets the difference between asking a kid to shake out her locker and asking her to shake out her underwear, but wants to know if making Redding change into her gym clothes would have been an “intrusive, traumatic search.” Justice Breyer doesn’t see the big deal about changing into gym clothes. Neither does Justice Ginsburg, who expects her clerks to do this on a regular basis.
Justice Souter wants to know if the reasonable suspicion test changes if a bunch of kids are going to eat meth and die instead of just pop NSAIDs for funsies. Justice Souter then manages to make everyone laugh, proving that he has been kidnapped by aliens and replaced with a 98-pound clone.
Justice Ginsburg wants to know about the cocaine that everybody totally carries in their underwear. Mr. RespondentPants uses the phrase “crotching the drug” and says that you can totally de-pants a student known for carrying cocaine in their underpants. Nobody bothers to ask how you would find out a student has a habit of carrying cocaine in their underpants in the first place, or why, having been found out, the student would be stupid enough to continue to do so.
Justice Kennedy then asks what is probably the most lucid question of the morning: whether it would satisfy the Fourth Amendment for the school administrators to give the student the choice between stripping in front of same-sex teachers at school or being carted down to the police station by cops and strip-searched there. Justice Scalia says something about needing probable cause in that instance, saving Mr. RespondentPants from saying something else stupid.
Chief Justice Roberts uses the word “brassiere,” which Mr. RespondentPants mishears as “prisoner.” There is a discussion over whether being asked to shake out one’s bra is less traumatic than being asked to shake out one’s underwear, and of course everyone involved gets the answer wrong because they are all men. Then Justice Breyer asks why it’s not reasonable to expect a kid to stick contraband in his underwear, because people used to stick things in Justice Breyer’s underwear all the time. (No, really. That one’s on page 58.)
Justice Alito then asks if this standard is a question of fact. Mr. RespondentPants says it is and points out that no one filed summary judgment in this case, but if they had, his client would totally have won. Justice Scalia asks if standard probable cause analysis is a jury question too, which seems like a trick question to me. Then Justice Alito asks about probable cause in 1983 cases, which is just nonsense. Justice Scalia points out that his last question was a trick question, and by the way, Mr. RespondentPants totally got it wrong.
Justice Ginsburg asks if the Ninth Circuit treated this as a fact question, because they appear to have answered it themselves. Mr. RespondentPants says that yes, it was a question of fact, except that the facts were so obvious that no reasonable factfinder could find that this case was not a lot of horseshit shoved in a thirteen-year-old girl’s underpants.
REBUTTAL BY PETITIONER SCHOOL DISTRICT (MR. ATTORNEYPANTS)
The Justices let Mr. AttorneyPants ramble for almost two whole paragraphs before Justice Scalia says something about “the people” limiting strip searches in their personal school districts, which apparently a whopping 189 districts in the country already have. Mr. AttorneyPants says this “proves” the question will be settled at the “local level,” which is a bit like saying that one farmer who shoots nine pigeons “proves” that pigeons are a dangerous nuisance and should be nuked into oblivion.
Mr. AttorneyPants’ big finish is to request an affirmative ruling because it would “further judicial economy.” I do not think those words mean what he thinks they mean.
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David Gorski settles Jenny McCarthy’s hash. Or he would, if McCarthy’s hash wasn’t so tenaciously unsettleable.
I, however, am hung up on a related topic: the idea that McCarthy not only “cured” her son’s autism, but thinks that this is a good thing.
I’ve had a high-functioning autistic in my circle of best-beloveds for a long time, and much of what I love about this person directly results from the HFA. Without the autism, s/he would be a dramatically different person – perhaps someone I would not get along with at all.
So whenever I hear the insistence that we must “cure” autism, all I can think of are the many other “diseases” we’ve tried to “cure” in the past – and failed, every single time – that make the people we love who they are. “Diseases” like homosexual orientation, for example, or transgender-ness.
I wholeheartedly agree that families with autistic members, especially ones who can’t function on their own, need relief from the endless uphill that is helping their child/sibling/etc. But we can address that need now with the resources we have now, in a manner that isn’t aimed at the pipe dream of turning a person into something else because we don’t like the original programming.
Whether autism can be “cured” remains to be seen, but whether it SHOULD be cured is the much bigger question. Where do we draw the line between increasing an autistic person’s functionality and eliminating who they are?
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A few days ago, the fine individual behind Dream Manifesto, LLC Twitter-added me, giving me the unparalleled opportunity to download an astonishing new e-book for free. Which is about the right price given its contents.
The title page says “this information is copyrighted by Dream Manifesto, LLC 2008.” The U.S. Copyright Office says this copyright (or any copyright by this LLC) was never registered, which basically means I could reprint the entire thing here and they’d have no cause of action whatsoever. Also, if they’d registered, they’d know “copyright” is NOT A VERB.
So! We charge forth.
The full title of this action-packed e-volume is The Principles of Successful Manifesting (TM): How to Live your Life Dreams in Abundance and Prosperity. Or possibly it’s The Principles of Successful Manifesting: The Quantum Method for Manifesting Your Life Dreams. The e-cover and e-title page do not agree. I suppose that’s why this is only Revision 1.26?
The Introduction begins with a cheery “Welcome to the endless potential that is You!” Thanks, but I’ve been here a while.
Then we learn “Everything in your life is a result of what you know, what you experience and how you interact with your consciousness. These elements make up the ultimate source from which everything else evolves.” To make this clearer, here’s a handy diagram:
And to think I spent a week in sixth grade memorizing all the noble gases. Pah.
“However, with this report and with a positive attitude to learn, you can go as deeply down into the rabbit hole as you wish. The rabbit hole is an analogy for your willingness to explore the unknown.”
Or, possibly, the rabbit hole is an analogy from the nonsensical depths from which this e-book arose.
“Please read this e-book with an open mind. You don’t have to believe everything that is written here – just explore as a scientist would do.”
With e-measurements, e-observation, and e-repeatable experimentation under controlled conditions. E-fabulous! And that’s just the Introduction. What e-joys await us in the actual book?
According to the e-Table of Contents, we’re about to explore such wisdom as “Imagination – Your Magic Virtual Reality World,” (now with Turbo Button!), “What is the Law of Attraction?” (hint – its archenemy is the Dryer Sheet), and “10 Impeding Beliefs that Prevent You From Getting Rich” (for instance, “I need to eat and pay rent”).
What’s next? Oo, I can’t wait!
Chapter One, “Exploring the Source of Happiness,” starts out with the singular notion that people everywhere just want to be happy. I thought people everywhere just wanted to be free, or for me to buy them a Coke and keep them company. War, what is it good for?
Then a paragraph from Baby’s First Deism, a sentence or two of Baby’s First Social Darwinism, and then this:
“Take a good look at your life right now. Where do you live? What does your furniture look like? What kind of car do you drive? How much money is in your bank account? Look in the mirror – how do you look? Everything has been manifested one way or the other, by you.”
I do wish someone would tell Ford about this. Surely they can manifest a better car than the Escort I bought thirteen years ago…they just aren’t.
“Have My Thoughts Created All This?
Yes! Whatever you see in the physical universe has been created in one way or the other by your thoughts.”
Oops.
“If you worry about getting all those bills paid you will create more of the same thing, simply because you have thought about it. Your thoughts are nothing more than frequencies or vibrations that resonate with similar vibrations already existing. Place two guitars side by side and pluck a string on one. The string on the other guitar will start vibrating, even though you haven’t touched it. It is the principle of resonance. Fascinating, isn’t it?”
Listen, I realize Schrodinger more or less postulated living creatures as wave-functions, but this is taking it a bit far, don’t you think?
Coming next, “Baby’s First Skills in Goal-Setting.” And heaven knows, we can’t miss that.
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Part 1, Part 2, Part 3, Part 4, Part 5, Part Six.
Chapter Whichever-It-Is, “Infiltrating Politics,” is the best set of Cliffs Notes I’ve yet seen on What All Is Supposed To Happen That’s Wrote Down In That “Revelations” Thingy. Only it’s all supposed to happen in The Year 2000.
- checks watch*
I certainly hope Lutzer and DeVries went to their pearly-gated reward before the Euro appeared on the scene. They’d probably have had a heart attack. (Just one. Shared between them.)
Then there’s some stuff about girding our loins with the peace of flaming swords, or something. I wasn’t really paying attention.
Coming next to this space, a much less disappointing review of The Principles of Successful Manifesting: The Quantum Method for Manifesting Your Life Dreams. Or maybe I’ll just rehash some old Eddie Izzard jokes.
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Part 1, Part 2, Part 3, Part 4, Part 5.
Chapter Eight, “Infiltrating the Church,” begins with graphic descriptions of seeping, erosion, rushing, and crumbling, which makes one wonder if the real enemy is Satan or FEMA.
In the future, say our intrepid authors, Satan will take over the Church. He’ll start with the pansy-ass liberals who want us all to love and honor one another in clear violation of Scripture, then will turn to the true Scotsmen Christians and give them a delightful magic show! And ice cream! Yayyy!
Satan, then, is both FEMA and Penn and/or Teller. It’s hard to keep up around here.
Next come several pages of Cliffs Notes from Baby’s First Psychology Textbook, Baby’s First “The Secret”, and Baby’s First Course in Blaming the Patient, which are every bit as exciting and thoughtful as you’d expect. Then God is compared to a slot machine and Lutzer and DeVries remember at the very last second to plug their church, which apparently is delicious: “Those who taste of the true God do not imbibe the sweet potions of false Gods.” (p. 130) Remember that next time you’re buying cough syrup.
Because the church isn’t nearly as much fun as Satan thinks it is, Chapter Nine is called “Infiltrating the Home.” Lutzer and DeVries conveniently overlook that the Third Amendment prohibits this.
In addition to FEMA and Penn & Teller, the following things are now Satan:
Ghostbusters
Casper the Friendly Ghost
Willow
He-Man
Dungeons & Dragons (yes, still)
Hard rock
Soft rock
Pharmacies
John Denver
Stay tuned for Part Seven, “Infiltrating Politics.” Woo!
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Recent Entries
- Now We Get To It
- Converting to Buddhism, Religiously
- On Troy Davis and Freestanding Innocence
- Justice Souter Retires
- On Angie Zapata and Criminal Defense
- United School District v. Redding: Oral Argument Recap
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- Successful Manifesting, Part One: The Rabbit Hole is an Analogy for a Rabbit Hole
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- Satan’s “Evangelism,” Part Six: OH NOEZ MAH CHURCH!
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